Amendment 48 Updates

Diana Hsieh, who co-authored a paper with me titled, “Amendment 48 Is Anti-Life,” pointed out several articles relevant to the measure, which would define a fertilized egg as a person in Colorado’s constitution.

The Denver Postpublished a fairly solid editorial against it. Unfortunately, the editorial includes this unfortunate argument: “While personal definitions of when life begins are varied, Amendment 48’s definition doesn’t fit with good science. Medical and scientific experts set the start of pregnancy at the point a fertilized egg attaches itself to the uterus.”

It is true that Amendment 48 would grant rights to a fertilized egg even before it implants in the uterus, and that expands the harm of the measure if passed and implemented. However, by referring to “personal definitions of when life begins,” the Post places the entire debate in the realm of subjectivism. (Besides, the only scientifically valid answer to the question of when life begins is “approximately four billion years ago,” as life has been an uninterupted chain since. Both the egg and sperm are alive prior to fertilization. The relevant question is when personhood begins.)

Then the Post takes a pragmatist turn:

The debate over personhood was settled in 1973 by the Supreme Court’s Roe vs. Wade decision on whether states could outlaw abortions. The court defined a fetus as a person if it developed into the third trimester and said states could not ban abortions of fetuses until that late stage in a pregnancy. The high court’s definition works. Amendment 48’s doesn’t.

But what is the basis of the claim? Isn’t the “third trimester” just another “personal definition,” according to the Post? If one definition can have force of law, why can’t another?

The advocates of Amendment 48 must be smiling. They never thought the measure would pass. What they wanted to do was advance their cause. They’ll be quite happy to outlaw abortion in incremental steps. What they have accomplished with Amendment 48 is to define the end point, toward which most of their opponents have sprinted. The paper by Diana and me is a notable exception.

The Rocky Mountain News also published a pretty good editorial against the measure. The Rocky correctly describes the central purpose of the measure:

What Amendment 48 proponents would like to do, by their own admission, is outlaw all abortions. They can’t do that by a state amendment, of course, so long as Roe v. Wade is the law of the land. And they know this. So Amendment 48 lays the foundation for outlawing abortions if Roe is ever overturned – assuming the measure is not struck down by the courts because of existing federal rulings.

The Rocky wonders whether the measure could “be used from the outset to regulate other areas, such as in vitro fertilization, stem cell research and even contraception.” Certainly it could be so used if federal rules on abortion were removed.

But the Rocky thinks it implausible that Amendment 48 could trigger investigations into miscarriages or prevent women from obtaining medical treatment that “might harm a fertilized egg.” Why are those concerns implausible? The Rocky offers no argument. While I doubt miscarriages would be routinely investigated, they would have to be if the measure were implemented and a miscarriage were deemed suspicious. For example, what if a woman’s associate called the police claiming the woman induced a miscarriage by taking certain herbs or physical measures? If a fertilized egg is legally a person, such cases would have to become a criminal matter. Likewise, if a fertilized egg is a person, then the risks to the egg must be weighed against the risks to the woman. This scenario is not only plausible but logically necessitated.

Nobably, the Rocky approves of “some restrictions on abortion,” but it doesn’t specify which ones. Amendment 48 “attempts to go too far,” says the Rocky — but how far is far enough? Again, Amendment 48 has done precisely what its advocates must have anticipated: move the public debate in the direction of more government control.

What neither newspaper mentions are the relevant biological facts of pregnancy. From the moment of conception through the fetal stage, the embryo/fetus is wholly contained within the woman’s body and wholly dependent upon her for sustenance. Thus, an embryo/fetus is radically different from a born child. For a more detailed argument, see the paper.

The Rocky also published three letters about abortion. Here is the argument by Paul Predecki:

The fetus in the womb is unquestionably (a) alive, (b) human, (c) unique (its DNA is different from that of either parent) and (d) totally innocent. …

Certainly the baby is totally dependent on the mother, but we are all dependent on others to varying extents. Surely dependence should not justify termination.

Diana and I explain why Predecki’s points do not imply personhood. And Predecki’s conflation of the position of the fertilized egg with a generalized “dependence” is ridiculous. When I purchase a loaf of bread from a grocery store, that’s hardly the same condition as being wholly contained within a woman’s body.

Patricia Szott refers to an “unborn child,” indicating the main line of attack of opponents of abortion: merely to assume that a fertilized egg is a person, without argument. That is because the foundation of the belief is rooted in religious faith, not reason.

Then Mayo McNeil quotes Genesis and Exodus to “refute” the view that a fertilized egg is a person. Put this in the hefty folder titled, “With Friends Like These…”

Now for some good news. As Diana blogs, the Illinois Appellate Court ruled that a fertilized egg is not a person. Hsieh cites the ACLU, which in turn cites Daily Kos. Here’s a summary of the case:

The case involved an Illinois couple suing their fertility clinic for tens of thousands of dollars because the clinic inadvertently had destroyed unimplanted eggs stored at the facility. The lower court had accepted the argument that a human being is created when an egg is fertilized, regardless of whether the fertilized egg is implanted in a woman’s body or left in a Petri dish. Left undisturbed, the lower court’s decision could have limited the ability of women in Illinois to access contraceptive services and genetic testing. Moreover, the decision would curb the ability of couples in Illinois to use reproductive technologies, such as in vitro fertilization, in starting a family.

So there is some sense left in the world. But the rampant subjectivism and pragmatism of the left is slowly giving ground to those pressing for faith-based politics.

One thought on “Amendment 48 Updates”

I haven’t been paying attention to this issue since I don’t live in Colorado. But upon reading your linked paper, I was alarmed at the implications of this amendment.

The paper is an excellent discussion of the rock-bottom biological reasons why a fertilized egg should not be considered a person, as well as the practical legal problems that would arise if this amendment were passed.

You do not go much into the consequences for the liberty of pregnant women–I assume because of space and distraction from your basic argument–but they are real and are already happening even though there are no such amendments as yet.

For example, women have been jailed in some states in order to prevent them from using drugs while pregnant. Also women have been forced to have particular medical treatments against their wishes by the courts in order to protect the fetus. Sometimes these treatments were forced as the “standard of care” even though the scientific evidence is not compelling. But even if it is the standard of care, a person should have the right to refuse unwanted medical treatment.

These infringements on the liberty of a pregnant woman are troubling because they indicate a social tendency to define the pregnant woman as not being a person in her own right, but merely as a carrier of the fetus. Such tyranny over the bodies of pregnant women would almost certainly become more commonplace if amendments like Colorado’s amendment 48 are passed.

In order to define the fetus as a person with rights, the law would have to define the pregnant woman as not being a person with rights. This contradiction indicates the inherent immorality of setting a living woman against her unborn fetus.